United States v. French

• Decision Date: 06 April 1938
• Docket Number: No. 10962.,10962.
• Citation: 95 F.2d 922
• Parties: UNITED STATES v. FRENCH et al.
• Court: U.S. Court of Appeals — Eighth Circuit

95 F.2d 922 (1938)

UNITED STATES v. FRENCH et al.

No. 10962.

Circuit Court of Appeals, Eighth Circuit.

April 6, 1938.

Earl C. Crouter, Sp. Asst. to Atty. Gen. (James W. Morris, Asst. Atty. Gen., Sewall Key and Norman D. Keller, Sp. Assts. to Atty. Gen., Edwin G. Moon, U. S. Atty., of Ottumwa, Iowa, C. I. Level, Asst. U. S. Atty., of Denison, Iowa, and William R. Sheridan, Asst. U. S. Atty., of Keokuk, Iowa, on the brief), for the United States.

Herbert E. Sitz and Charles D. Waterman, both of Davenport, Iowa (Lane & Waterman, of Davenport, Iowa, on the brief), for appellees.

Before STONE, SANBORN, and WOODROUGH, Circuit Judges.

STONE, Circuit Judge.

May 17, 1929, a check refunding an overpayment of income tax was received by French and Hecht, a partnership in Iowa. May 11, 1931, this action was brought against the individuals composing the partnership on the ground of erroneous refund. After various proceedings, defendant Hecht filed a motion (in the form of an amendment of an earlier motion) to dismiss as to him. Among other things, the motion urged that the action was barred by the applicable two-year statute of limitations, Revenue Act of 1928, § 610(b), 45 Stat. 791, 875, 26 U.S.C.A. § 1646(b), because no legal summons had been issued or served within two years from receipt of the refund (United States v. Wurts, 58 S. Ct. 637, 82 L.Ed. ___, decided March 14, 1938) — such service, or at least issuance, being the institution of an action under the Iowa statutes. Thereafter plaintiff filed a motion to amend an original summons and an alias summons. Plaintiff filed a resistance to the motion to dismiss.

A hearing was had on the two motions, at which evidence in the form of a stipulation of facts and an affidavit by Hecht was introduced. From the undisputed evidence, it was clear that a paper (intended as a summons) and another identical paper (intended as an alias summons) had been delivered to the marshal within the statutory limit but service was after such limit. On January 15, 1937, the court entered an order sustaining the motion of Hecht to dismiss and dismissing the action as to Hecht¹ and on January 21, 1937, amended that order by including therein a denial of plaintiff's motion to amend. From these two orders, plaintiff brings this appeal. Appellant presents here three issues: (I) the action was begun within the above applicable statutory limitations; (II) appellee has waived any insufficiency of summons by general appearance; (III) the motion to amend the original and alias summons should have been sustained.

I. Commencement of the Action.

Section 610(b) of the Revenue Act of 1928, 45 Stat. 791, 875, 26 U.S.C.A. § 1646(b), requires suits to recover refund of income taxes to be "begun" within two years after making the refund.

The Conformity Act, 28 U.S.C.A. § 724, requires the existing state "practice, pleadings, and forms and modes of proceeding" to be followed in law cases, and this provision includes the method of bringing actions and the forms of summons. Shepard v. Adams, 168 U.S. 618, 18 S.Ct. 214, 42 L.Ed. 602; United States v. Van Dusen, 8 Cir., 78 F.2d 121.

The pertinent Iowa statutes are sections 11012 and 11055, Code of Iowa, 1927. Section 11012 deals with "Commencement of action" and provides for service by the sheriff or by "another person" and provides that "commencement of the action" shall be "the delivery of the original notice to the sheriff" when service is by the sheriff or "the actual service of that notice" where service is by another than the sheriff.

Section 11055 deals with "Original Notice." It declares that an "action in a court of record shall be commenced by serving the defendant with a notice," the contents of which are prescribed therein. The section does not state whether the above-quoted portion refers only to service by other than the sheriff or not. However, the quoted portion can be reconciled with section 11012 by regarding it as referring in this respect only to instances where service is other than by the sheriff. Any other construction would create a conflict between the two sections which, of course, should be avoided if possible. There is another reason why, with this character of issue, section 11012 should be held applicable here. That section is contained in chapter 487 entitled "Limitations of Actions" while section 11055 is contained in chapter 489 entitled "Manner of Commencing Actions." The issue here is whether this action is barred by limitation, therefore, if the two sections are in conflict, it would seem that 11012 should prevail here because it deals with commencement of actions for purposes of limitations. The statute is so construed by the Supreme Court of Iowa. Fernekes v. Case, 75 Iowa 152, 39 N.W. 238; Phinney v. Donahue, 67 Iowa 192, 25 N.W. 126.

The service here was by a deputy marshal which is the equivalent to service by a sheriff. Hence, section 11012 applies and this action was or would be commenced by delivery of an original notice — here a summons — to the marshal. This delivery was, concededly, within the two-year period under section 610(b) of the Revenue Act 1928.

The controversy here, however, is not so much over the date of delivery or of service. It is whether the paper delivered to the marshal was so fatally defective as a summons that it failed as such. Obviously, a paper delivered to the marshal for the purpose of bringing a party into court must contain the necessary requisites.

Section 777 of title 28, U.S.C.A., provides that "No summons * * * shall be abated, arrested, quashed, or reversed for any defect or want of form." Obviously, this provision does not extend to defect or want of substance. While this statute prevails over state law and is without the Conformity Act (Mexican Central Ry. Co. v. Duthie, 189 U.S. 76, 78, 23 S.Ct. 610, 47 L.Ed. 715; Henderson v. Louisville & N. R. Co., 123 U.S. 61, 64, 65, 8 S.Ct. 60, 31 L.Ed. 92; Howe v. Haterius, 8 Cir., 66 F.2d 835, 837; In re Griggs, 8 Cir., 233 F. 243, 244), yet, by its very terms, it does not extend to substantial defects. Therefore, the question here (as to section 777) is whether the defects of the summons here are merely as to form or as to substance. That matter is to be determined by the state law under the Conformity Act (United States v. Van Dusen, 8 Cir., 78 F.2d 121) unless there is a governing rule of court which is valid. Boston & M. R. R. v. Gokey, 210 U.S. 155, 28 S.Ct. 657, 52 L.Ed. 1002; Shepard v. Adams, 168 U.S. 618, 18 S.Ct. 214, 42 L. Ed. 602; United States v. Van Dusen, 8 Cir., 78 F.2d 121, 123. First we will examine the state law and then a rule of court here cited.

Section 11055, Code Iowa 1927, sets forth the contents of an "original notice" (summons). They are as follows: "a notice, signed by the plaintiff or his attorney, informing him of the name of the plaintiff, that a petition is, or on or before the date named therein will be, filed in the office of the clerk of the court wherein action is brought, naming it, and stating in general terms the cause or causes thereof, and if it is for money, the amount thereof, and that unless he appears thereto and defends before noon of the second day of the term at which defendant is required to appear, naming it, his default will be entered and judgment or decree rendered against him thereon."

This form of summons is applicable where service is made by a sheriff (Cummings v. Landes, 140 Iowa 80, 117 N.W. 22, 24; Hoitt v. Skinner, 99 Iowa 360, 68 N.W. 788, 789; Fernekes v. Case, 75 Iowa 152, 39 N.W. 238), therefore, applicable here where service was made by a deputy marshal.

The portions of the original and of the alias summons here pertinent are identical and are as follows:

"To the Marshal of the Southern District of Iowa — Greeting:

"You Are Hereby Commanded, That you summon G. Watson French, F. H. French, J. L. Hecht, Marion M. French, Anna E. French, and Francis H. French, Executor and Trustee of the Estate of Nathaniel French, deceased late of your District, if they may be found therein, so that they be and appear before the United States District Court for the Southern District of Iowa, at Davenport, Iowa, on the 27th day of October, 1931 to answer to a complaint filed by the United States of America."

Appellee attacks the sufficiency of this paper as a summons upon ten grounds, each being a claimed fatal defect. As to seven of these grounds, the statements in the paper are sufficient answer and we dismiss such from further consideration. The three remaining are that (a) the summons was not addressed to the defendant; (b) the summons did not state the cause or causes of action or the amount of money claimed; and (c) the summons did not specify the consequences of a failure on the part of the defendant to appear and defend.

It seems clear that the summons lacked each of the above three things. It is clear that section 11055 requires the "notice" (summons) to state "in general terms the cause or causes thereof, and if it is for money this action is, the amount thereof, and that unless he appears thereto and defends * * * his default will be entered and judgment or decree rendered against him thereon." There is no express requirement that the "notice" shall be directed to the defendant but it is difficult to conceive of a proper notice which would not convey such information in some form. We may, however, lay aside the claimed defect as to direction of the summons to the defendant without examination because it is clear that the summons is fatally defective since there is no description whatsoever therein as to the "cause or causes" of action, nor is there any statement whatsoever of the consequences of a failure to appear and defend, both as required by section 11055.

In Farley v. Carter, 222 Iowa 92, 269 N.W. 34, 35, in considering the requirement as to statement of cause of action and in speaking of this section, the court said: "This necessarily implies the nature...